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gun being walked was a violation of what he considered to be his sense of a properly run case, and, third, his own desire to assure that inquiries were made? >> well, what occurred in the late april into may time period, in connection with or immediately after the discussion he had about wide receiver and the gun walking in wide receiver, he learned information about fast and furious, perhaps not gun walking was going on, but he learned information about the case sufficient enough to write an e-mail to the head of the internal office that the justice department who handles wiretaps referring to one of the most important cases involving the u.s.-mexico trafficking activity, and he did that in the context of trying to ensure the wiretap applications were reviewed promptly. ..
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people are being served all over the united states because they had prior notice of the commission failed to act in our responsibly can subsequently someone else has been harmed. i party identified handers that this particular individual had. and we know he has explicit information about prior activities in the store. there has been information contained according to your
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report and he's responsible for reviewing, maybe not complete. but the failure to inquire in the communications that take place between one more in which there's this, well, i gestured this effectively demeanor that he understood what he was talking to the atf, where is the duty to inquire that would have led to a clear, articulation of what was going on with operation fast and furious? >> and that i think is a very important question precisely the reason we have the recommendation about deputy ag's meeting to review the affidavit. they are not looking on it just as robotic lawyers to check a box about, is the statutory purpose method? deputy ag's, members of the ses are involved in policy issues. they have an appreciation of
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broader issues. and if they notice a problem, their obligation, i believe as deputy ag and to ask questions. >> you get the ability -- i'm running out of time. i think he did well. you're a judge, jury, factfinder and writer of the opinion. so you are able to classify things a variety of different ways. if your opinion that mr. weinstein should have specifically and unambiguously questioned whether there were improper tactics unfastened areas that mirrored those who've taken place in entire operation. >> we found sufficient information to cover memo to either asked questions or going to the affidavit, which would have sugar more red flags. >> i thank the gentleman for that line of questioning. we now go to the gentleman from illinois, mr. quigley for five minutes.
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>> thank you, mr. chairman. thank you for your work. we're talking a little bit about the fire capped analysis. is it your sense in talking about this is because of the sheer volume to junior level people were only reading the summaries of these wiretap applications >> episode we heard the sheer volume came before the all items they need to deal with that they could rely on the memo from their subordinates, which we're not taking issue on a memos they receive. that is what we have heard. >> with the summaries and not to create the full body >> the summary memo that was
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received by mr. weinstein that just occurred within the prior few weeks were sufficient in our view to trigger him to inquire further. >> and going to your point of wickedness in the future, which is what we should really be about, unless there's something like you just described that triggers a more thorough analysis, how do you get through the volume that we talk about here in all these cases and many more in consist across the country in other scenarios you can only imagine so what you have to do? take a random number of a particular type into a more thorough analysis to see if there's something more significant there? >> i think in our view, in each instance the congress has authorized what is a very intrusive on force and come electronically wiretapping individuals phone or other personal device.
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congress put very tight structures are not. that is a fourth amendment right be inundated. in our view come in each instance, a deputy assistant attorney general, which is the person to whom the statute congress has given authority to authorize that intrusion should look at each affidavit in a manner sufficient to allow them to reform a personal judgment on whether they are comfortable with that application, that affidavit first criteria. then we recognize that the level of scrutiny they gave to the affidavit can well be informed by what they read in the memo, their staff has provided to them. but that they can't and shouldn't justify on that. >> to roll the experience and the sheer volume of low its staff isn't sufficiently. >> certainly there can always be more staffing and the volume has grown since i was in the criminal division 12 years ago.
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so i understand why there may be need for more resources. but i think regardless of whether there is the need for more resources in our field, this is such a significant event that has been authorized by this deserves highest priority. >> let me skip to another point. in your analysis, what is the estimate of the total gone by where walked under both administrations? >> as we put on the report, rough estimate was about 2000. rough estimate a wide receiver with about 400. that's total guns. there were about 100 firearms in each case. they were an addicted ietf. >> analyzing this as much as you did in analyzing what agent for sally said that straw purchases are punished about a moving violation he testified before the committee.
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your best guess and retain these applications in a number of guns that are transported through straw purchases. >> i'm sorry, the number of guns -- >> that go to mexico due to purchases? >> we did a gunman or a couple years ago that outline the significant flow firearm trafficking. so there is a substantial flow. >> your guests and members annually? thousands and thousands and thousands. >> as i sit here -- i'm sorry, i don't have that. >> this is a tragedy in moscow for about. the concern, as mr. chairman said earlier, to keep government out of the hands of dangerous criminals, this issue isn't going to stop today because straw purchases are happening today. and as the agent who testified in front of this committee said, they are not punished anymore.
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they're doing 65 in a 50. i know because of your hard work you appreciate this, but it cannot be lost, sir, that the fact is we haven't solved this problem if the numbers to work and what happened in this tragedy are still taking place. >> clearly as we outlined in our previous report, they need to take serious action, law enforcement action to address this problem. >> thank you. >> i thank the gentleman. i only ask each may be correct your statement about what they use the word interdicted. deeming her covered her interdicted when he said what weapons of each? >> i'm sorry, limiting that to ats interdictions of 100 out of 2000. -- 100 interdict good or stopped by ats. many additional recovery seems
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or other locations, but only 100 in total of the 2000. >> because i think the gentleman spy was very good comment is a term where they lost control but then regained control. >> in some instances, that is the case. it's hard to generalize on the 100 because there's several different events that occurred as to how they got them come to some of which i can't talk about because it's still under -- >> this committee has spent an inordinate amount of time as judiciary trying to define what that walking as. if you grab them before they lose control, we generally believe that's not a walking. it should liberally allow it to leave your control that is gone walking. definitionally operate under generally worse you have an opportunity to enter dates in a legal basis to do so and you don't. great standards. i thank the gentleman. we now go to the four gentlemen of the full committee,
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mr. burton. >> on page 455 of your report, you refer to any brewer failing to report the gone walking to the deputy attorney general. and you say, we believe poor should have probably informed the attorney general about the matter at april 2010 and he failed to do so. the question i have is the public relations office over there, i guess the ladies name is tracy schmoll on june the first you said the company that lanny brewer did not review the wiretap in fast and furious. that does not stop the committee, however, from falsely asserting that brewer was responsible for authorizing. there is a real inconsistency there. the last part of my question is i understand that there's a
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media matters. i'm sure you were familiar with what that is. she added at least sent an e-mail to them about some ready set out to be investigating or get a little pressure put on them. are you familiar with any of that? >> i read the reports and i've seen them. i have not looked at them, congressman, beyond that. >> i was not involved in your -- the reason i ask is that this e-mail was sent for justice phillips, were any other e-mails sent about the chairman or members of this committee conducting the investigation? because she was pretty vocal and vociferous when she said on june 5th the committee also knows full well the assistant attorney general lanie brewer did not review the wiretap applications on "fast and furious" and that does not stop the committee from falsely asserting brewer was responsible for authorizing it.
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and if this example is going to media matters about this, mr. phillips, is the way that they normally do things over there in the public relations department, is concerned maybe they were trying to do that to members of this committee working so hard on the investigation. as you have no knowledge about? >> i don't know about the interaction between public affairs and media matters other than what i've read in the press in the last few days about it. >> thank you very much. >> i thank the gentleman. speaking of retaliation of the enemies were the attorney general's, if in fact federal funds are used in order to dissuade members of congress are members the judiciary branch, that would be a violation of law, would not?
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are not allowed to use federal funds to essentially attack your political opponents. that is kind of a no no, it's not? ig 101. >> to that extent i would like to talk to the whistleblowers. as he said in your opening statement and pro sides of the aisle have called them courageous. your report does not spend much time reporting whistleblowers who expose fast and furious, although you do mention it. have you been able to determine whether the whistleblowers have in fact been dealt with fairly protected under the whistleblowers act? >> that is a matter as we indicate that we are still finalizing and reviewing it and i agree mr. chairman, the efforts that the atf agents in this case to come forward and acknowledge what was not public. having done my enforcement cases in the southern district of new york, it takes a lot of courage to come forward if you are in a
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one-person agency explained that the agency has done wrong. >> in your report would you feel you have indicated the whistleblowers? in other words, when dobson and others came forward, they were accused of in fact false allegations, et cetera. would you see at the end of your investigation is 471 pages, as distinct as it is pretty well does the job of indicating their concerns they raise publicly? >> certainly from my standpoint and a lot people who came forward. >> i realize it's a broad group now. >> the folks who came forward and said were being walked and they could have had application in agent terres.which was information on the internet and more publicly beyond that, i think it is pretty clear that this would happen here if the guns were walked in a substantial way. >> they are not setting the fact
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that ryan terry had to be gunned down for them to come forward. wasn't this example of exactly why whistleblowers are to be good and why whistleblowers should be encouraged to come forward sooner rather than later and i want to particularly mention the ones who are not looking for a key top case, but in fact are truly trying to get some dingbat stopped. >> i agree. this is an example of employees in all parts of the government. in this case law enforcement to come forward if they have information and be comfortable doing that. that is one of the reasons, as you know, i have put in place a whistleblower position in my office because of this and other events that i have seen that people need to be comfortable to come forward. we need to do a good job of following up on their concerns. >> i want to thank you for the
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fact the more whistleblowers go to ig. ig rundowns problems that congress ever did. we often get noted when whistleblowers come to us. most of the cases we see come to your office is an whistleblowers come within the agency. and with that, i would note that one of the qcs that will be on the floor today will in fact be a whistleblower reform. so there could be a better time to remind members of congress that we depend on whistleblowers then we need to protect them. but that, i am pleased to go to the shaman from illinois, mr. davis. >> thank you, mr. chairman. and thank you, mr. inspector general. i want to thank you for your very informative than clarifying information. i think which you have delineated gives the average citizen a great deal of confidence that what they are
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hearing is what is actually happening. i know that lanie brewer, head of the criminal division and the department of justice has been severely criticized by some members of congress for what they consider to be his actions here. senator grassley has called for this resignation. the chairman of this committee has said mr. brewer, and i quote, clearly culpability. and mr. schaefer has even said that mr. brewer started this up in 2009. so i want to ask you a few questions to see if we can't really clarify and understand what mr. brewer's role in these two programs were. one, mr. horowitz, did you find the assistant attorney general authorized or did god walking in
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ice operation "fast and furious"? >> we did not improve the wiretap applications in either operation? >> know, in each of the 14 instances, it was a deputy assistant attorney general who authorized the applications. >> you find any evidence that mr. brewer was aware deadlocking occurred in operation "fast and furious" before the information became public? >> prior to senator grassley's letter from a we did not find information that he was aware of god walking in operation "fast and furious." it was only with operation wide receiver we were aware. >> in april 2010, mr. brewer did learn about the attack excited than he is during the bush administration in operation wide
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receiver, but only after the operation being completed. so mr. horowitz, what did mr. brewer do when he learned that god walking occurred in operation wide receiver? >> well, we were told by mr. brewer and mr. weinstein and perhaps others that we interviewed was that they would be meeting with the atf and at that meeting that atf would be told that god walking tactics are unacceptable. we found that there was no admonishing at the meeting, but we found there was no fact of that conduct. >> what additional steps, if there were any, do you think mr. brewer should have taken when he learned that god walking
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occurred in operation wide receiver? >> as indicated, one of the things we sought out to do here with address the facts that we found and not go beyond those. in this case we found in 2010 he did not have direct authority over ats. it was the attorney general who had authority. those tactics are unacceptable in a should have told that to people, all one or the other or both the people that could have taken action to stop or to correct what was happening. >> mr. brewer testified publicly before congress as acknowledged and apologized for his oversight and explained that he regretted the fact he did not raise concerns about operation wide receiver with other senior leaders at the department of justice.
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chairman issa has also alleged that mr. brewer is actually advocating god walking to the mexican government. as evidence for this claim, chairman issa points to senior officials from february 2nd, tony levin at the data discussed in deliveries, he was with the note said and i quote mr. brewer suggested allowing strong purchases to cross into mexico through the mexican federal police force can arrest the mexicans attorney general's office can prosecute and convict such coordinated operation between the united states and mexico and may send a strong message to arms traffic. so when you report come you draw a sharp distinction. >> asking of us can send the
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gentlemen have additional time without objection. >> thank you, mr. chairman. you draw a sharp distinction between gun walking and controlled deliveries. do you consider coordination with mexico to be the same as advocating for caguas? >> we found as we noted in a report that controlled deliveries are different from gun walking and we would draw a distinction between the two and a distinction was drawn between the two for us by a number of witnesses. >> a thank you for your testimony. >> would the gentleman yield? is in a truth that wide receiver as an intent stated was a controlled delivery? the actual gun walking that occurred was when agents abandoned their weapons for any number of reasons, including they've been there for hours, they retired, they went home. but the actual program but
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assistant attorney general brewer was advocating, in fact, reads right on what was wide receiver. in a wide receiver there first was a failure to interdict and controlled deliveries and the controlled deliveries that as i understand it, and we did not investigate this further than mr. brewer had talked about in february of 2011 was enough for her to do coordinated interdiction with mexican authorities. that was stopped by the attorney general and deputy attorney general border a few weeks later. >> if you succeeded in front to do if they would be essentially repeating a history of something that failed, to transport across an addiction. >> they clearly failed and wide receiver and as with all things the devil is in the details to how the plan of action. so i'm hesitant to speculate what the outcome would be, but that was the idea and wide
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receiver to do an effective controlled delivery, which never happened. >> thank you. i thank the gentleman for yielding. we now go to the gentleman from florida, mr. labrador who is not from florida, but from idaho. we could go on and on, but you're lucky rosses out of the room. the gentleman is recognized. >> good morning. thank you for being here and i thank you for your report. i think it's very thorough. this morning and yesterday we heard a lot of media reports about how this is safe in occasion for mr. holder. if already said you're not going to go there and you let the report speaks for itself. but i find it fascinating that the only way some of the people here in the media are saying this is a vindication for mr. holder is by creating a
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strong argument. they say what this committee was investigating was whether mr. holder knew or participated in fast and furious from the beginning. we didn't know what mr. holder never. and why didn't know? because he came to congress on several occasions and he misled congress. whether it's intentional or whether it was unintentional, by faxing your report show that he, on several occasions, didn't tell the truth to congress. it's not true? >> we don't draw conclusion as to his testimony or congress. but in a letter sent from the attorney general's office twice, not malice understatement and those memos were either misleading or false, is that correct? >> we did not look at that as part of our review, congressman. i am not in a position today to
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speak to the representation of congress. >> in the memos -- the letters you have on -- he stated on may 3rd, holder testified he did look at the statements, but he did give two memos to congress through his office. there were two specific memos given to congress that had to be retracted. is not correct? >> i am not aware of that, congressman. again, we didn't question the department about what they did or didn't provide to congress. >> with the gentleman yield for a second? yesterday in the briefing, you might check with your own stuff court talked about every fork in the legislator corrected and may at, those two you do have an opinion on. >> yes, i'm sorry. the reference to memo i was confused. >> yes, i apologize. >> so let's call them letters. >> you are aware of the two
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letters? this had to be retracted. the february 4th letter was retracted. i think as the committees on report indicated us to them a second letter an argument that is literally strewn, but that is what impart troubled eyes. and he wrote in your report that troubled you? >> i don't know if you use the word misleading, but it could mislead. so that may just ask you a simple question. and really quickly tell me how much time -- how many people to have on your staff working on this report? >> i don't know the number precisely because so many people worked on it for 18 months. it was i'm guessing north of 20. >> how many man-hours were spent on this report? >> the good news is i was in here for the first 13 months. the last five months i can tell you a lot and hours.
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>> as we just heard from mr. lynch, your report is so long that it might encourage someone that you read it. you have over 451 pages in the report. do you think your time spent on this report come your time spent on investigating this would have been necessary had the department of justice provided this congress the same information that they provided to you in your investigation? >> that would be hard to speculate on. i will say regardless of what had happened along the way, the fact that wide receiver and train to come in to important to bring forward very significant information before the letterwriting that occurred that you reference. so i think we would've spent a lot of hours on it. our time might've been different. obviously chapter six would've changed. >> it in your investigation he said you're a deputy attorney
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general before. in your time, you are always asking the question, what does somebody know about an investigation? what does somebody know but which are investigating? always try to get to is the bottom-line of what the attorney general knew, but his department there. we spent countless hours here trying to figure that out. and in your report, he says they should've done done a better job. i kind of fascinating people are trying to exonerate anybody of any wrongdoing but clearly there is spent blissful ignorance, there's been blissful avoidance of the truth and i just think it is time for a stick at get the bottom-line of what happened here. i really thank you for your report, your time and i thank you for doing the job that we asked you to do. >> i thank the gentleman. we now go to the gentleman from arizona, mr. barber. >> thank you, mr. chairman. for allowing me to sit on this hearing. i also want to thank you for coming to arizona this week when
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we gather to honor brian into how the station -- border patrol station named for him. this young man sacrificed the ultimate sacrifice for our country and your presence there. the family in the congress was concerned and trying to do their best to financers to the the questions they have. when i met with them this week they had one question and one request from us. they asked that we make sure that they get the information that they have been waiting for that has been on their minds and their hearts were 21 months. to meet his average is they haven't gotten the answer sooner. they want to know what happened to brian come away guns were allowed to go into mexico with the full knowledge of personnel in the federal government and ultimately ended up at the same.
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they want to know who made the decision to launch fast and furious and who should be held accountable for these decisions and what the consequences they will face. mr. horowitz, want to thank you and your staff for what is obviously a tremendous amount of work. at the hearing report in my view a report that has tremendous credibility and objectivity. and i think finally the terry family is beginning, but just beginning to get the answers they deserve that are long overdue. i don't believe they have yet received the answers to all of your questions and i would like to address this in just a moment. agent terry made the ultimate sacrifice for his country. nothing we can do but ring him back but his family deserves to know what's responsible.
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your finest are serious thought policy oversight and flagrant disregard for public safety led american weapons to fall in the hands of violent mexican criminals and drug cartel members of the part of operation "fast and furious." it should never have been a policy to allow these firearms to be smuggled knowingly into mexico and should've never improved and must never happen again. so i've a question question or two for you, mr. horowitz. he said steps have been taken already to prevent a recurrence. can you say specifically a couple of the steps that you believe will prevent a recurrence that are already in place? >> well, as we have put in our report, the atf has instituted a variety of restrictions on when this type of activity can occur. so that is first. second, there have now been put
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in place steps to require various levels of supervisory review that didn't exist before. so for example, those are two and we've suggested others to make sure others are classified such as requiring atf to acquire the operation was the attorney general has in place. >> thank you for that. i agree with and they have all been kept in the dark about ryan's dad and circumstances surrounding it. teacher investigation revealed that this was discussed within the department and why it was not determined that the family should know more sooner? >> i don't recall seeing evidence of discussion, specifically about what to tell
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the terry family. i would have to refresh myself on not, but i don't recall that in the basis of that was occurring that was what was being discussed. >> one more question in the remaining time. we have heard that there were internal dispute within the department of justice at the field level that allowed "fast and furious" to buy pens into mexico and there's a dispute between the atf and u.s. attorney's office. in a speech to what you thought regarding this? >> that's an issue we take on address because there has been suggestion for agents that they couldn't caesar take action because the u.s. attorney's office had to view it with a coder could not do. that was an issue and that was a concern for what we found it fast and furious with that didn't exist from the outset, both u.s. attorney's office in the agents at atf decided they
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wanted to get to the top of the organization in the way to do that was to take no action. it wasn't in our view a vehicle problem, an issue about the evidence. it is a tactical decision by both entities. >> i thank you for your testimony. >> would the gentleman yield for just a quick question? you've commented several times on the agents deciding to do it. in your opinion, in your staff's opinion, with any part of that, if you will come in the air ambition, our job -- our job is limited to we go after guns. alcohol, tobacco and firearms are basically guns. they ran up the chain of drugs and drug cartels that this ambition they would roll of
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people and entities well outside their basic jurisdiction. was there any sort of appealing by your people that this was exuberance of ambition? i'm going to get a big hit, move up in the director of the atf or something like that? >> well, i think there was a concern we saw but a desire to go forward wiretap. that is generally thought of as a sophisticated technique and show sophistication in the case. even though we found there was all this evidence, thousands of guns -- by that point hundreds of guns, lots of cash from people who had no income. so the question was, why not take action then, but instead focus on the wiretap. so that turned us. another concern and perhaps evidence of the thinking, although no one of course told us that was the reason and no one ever brags about their ambition, as shocking as that may be. but right at the outset, the effort to keep i.c.e. out of the
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case has indicated that e-mails in november is we've got to keep i.c.e. at bay. don't have them investigate. well, they have an important piece of the law enforcement effort and contracting at the border and you can't take that position if you want to be effective at the order in my estimation. >> i thank the gentleman. we now go to the gentleman from texas, mr. farenthold. >> thank you, mr. chairman. mr. inspector general come i apologize if i sound hostile. i'm a huge fan of the inspector general program. i think it's a great asset, but there do remain questions i've gotten about as this investigation the fox guarding the henhouse? i think the report goes into great depth, but i do want to hit the outlines of it on some things that may lead to where we need to go further in this committee in continuing to investigate "fast and furious." my first question is the supreme court has made very clear with
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respect to executive privilege there is not an unqualified presidential privilege. the delivered process privilege requires material be both limited to communications occurring before the policy adoption and deliberately reflect in the process by which the policy alternatives are assessed at the highest level. as you know, the president has claimed executive privilege to a broad group of documents this committee has subpoenaed, some of which i imagine you looked at in your investigation. it had access to thousands documents that we've had. my first question is roughly how many of these documents in your pinot be covered by executive privilege? >> congressman, we fortunately didn't have to make a decision about what we found was that was not an executive privilege is our decision was to ask for all the documents that we needed. we caught them and to include in the report. >> we looked at everything.
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>> if you can't answer specifically, where their seminar by executive privilege? >> i don't know that peer that was never our call. we were never sharing any information about that. >> in order to report the white house refused to share internal communications wduring your investigation of fast and furious. we've noted a connection the white house to kevin o'reilly at the national security council. do you think the white house's refusal to share documents limited the scope of your investigation? and what this committee be well served by pursuing an investigation in an avenue? >> as we noted in the report, we did not get internal communications for the white house and mr. o'reilly's unwillingness to speak to estimated possible to pursue that angle of the case on the question had been raised. >> would probably be worthwhile. >> certainly we have sought to pursue every lead we could. so from our standpoint it was the lead we wanted to follow. >> thank you very much.
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as mr. burton pointed out -- and say, mr. burton pointed out from the doj has been of cooperating with groups like media matters with a spin on stories so they'll come out in a positive manner. and i imagine the press office and all of doj has been concerned about that. it actually troubles me there is such a political asset to what goes on in the doj about executive agencies, you hope to doj would be the one about politics. my question is do you know doj share this report prior to its release yesterday with any outside groups, and or, who within the doj would've made substantive changes to the report? >> we provided for purposes of our comments and review a draft of the requirement. we allowed the department internally to share with people
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who had relevant information, but to tightly control who saw it and it was not to be shared. >> so media matters did invent this. >> they should not have been if they have been allowed to come it would've been a violation of the understanding we had about the review. >> okay, great. i've been approached by commentators and constituents alike. the question of political motives behind allowing something like operation fast and various to continue. some of them have claimed there has been a desire some levels to create a public outcry for stricter gun laws. which are investigation have been able to uncover political motives behind allowing the operation to continue? and today, with or is the entire fiasco a result of process management? >> we did look at that issue to see if we had documents or other evidence on that point. would it not as they go into the
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investigation looking for the motive specifically, but we did think it was important to address it. we did highlight instances where there's talk about perhaps changing rules, regulations or laws. but we found a solid this incident came after the investigation had begun. so the notion that maybe this is a good example to show why we need to change the laws, but we didn't find evidence at the outset that that was what was driving. >> did you find evidence at any point for the fast and furious was in fact that this was happening? >> there was suggestion later on that and maybe a good example to show why rules, laws, regulations, as an example of why they might need to change. >> i see my time is expired. >> would the gentleman yield? to find no evidence that before the fact they did operation "fast and furious" in order to
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get -- >> correct, we did not see at the outset, in fact the documents we saw indicated let's not take action to get the top simply because they want to get to the top. >> is fast and furious being allowed to walk a good poster child for what you need to have tighter roles on gun dealers since gun dealers were in fact ordered a coerced into participating in this rather than listening to when they say this guy is a straw buyer and arresting them? >> we found in terms of a law-enforcement tech geek, but law-enforcement tactics that the decision-making that justified for this going on just failed in the primary mission of law-enforcement, which was public tiered >> i thank the gentleman. we now go to that splendid individual from the great state
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of missouri for his questions and probing good with that, mr. clay is recognized for five minutes. >> thank you, mr. chairman. i'm so glad to be back after the august break to get right down into sound. mr. chairman, i think we can all agree that gun walking and the weather during operation wide receiver or operation fast and furious was an incredibly reckless tactic is that both american and mexican lives at risk. in february, the attorney general testified before this committee that the department had removed, reassign or accepted the resignation of a number of people within atf and the u.s. attorney's office in phoenix that had operational oversight of operation "fast and furious," including the atf director and u.s. attorney from phoenix, denis burke.
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mr. horowitz, it is my understanding that atf has been under new leadership since august of last year's in the attorney general announced the apartment of former military prosecutor and u.s. attorney for the district of minnesota to serve as acting director of atf. is that correct? >> that's my understanding. >> the attorney general also stated on several occasions he was waiting for the release of your final report to make final determination about further personnel actions. is it consistent with prior practice for our agency leadership to reserve certain personnel actions regarding individuals under investigation for alleged misconduct until there is an inspector general report? >> since i'm only five minutes
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in the job, congressman, i will speak to -- >> so you are not cleared on the history? >> i don't know what my office has done reviews, with different approaches might have been taken if any. >> well you know, your report not only makes policy recommendations for the department of justice, but also assessed, and i quote, the performance of each of the department employees who are most involved in operation wide receiver and operation fast and furious, several media outlets have reported recommended individuals for disciplined by the attorney general. mr. horowitz, did you make any specific recommendation in light of operation wide receiver and operation fast and furious? >> no, we simply reported on the facts about what kind of where we thought there were failures or other issues related to performance, but not made
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specific recommendations as to what should or shouldn't have been. >> is that common practice to make recommendations on personnel? >> again come to being fairly new in the job, my understanding is that on occasions there may be instances where we have in the past, so i am not sure i can speak to the history of that. >> yesterday the attorney general announced that former acting atf director nelson is retiring and attorney general jason weinstein has resigned. the attorney general also stated that there may be more personnel action for career employees at atf is the next u.s. attorney's office. although the four active reasons he cannot disclose at this time. he stated, and i quote, those individuals within atf in the u.s. attorney's office in
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arizona, the oig report found to have been responsible for designing, implementing or supervising operation fast and furious has been referred to the appropriate entities for review and consideration of the potential personnel actions consistent with the requirements of the privacy act, the department has prohibited from revealing any additional information about these referrals at this time. and mr. chairman, looking at how this is all developed, it gives me pause and makes me wonder, in did this committee shoot from the hip that we move too soon? that's just food for thought. >> with the gentleman yield? >> for you mr. chairman and the rest of the committee who voted the recklessly when it was time
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to take action against our attorney general. i yield. >> i thank the gentleman. i might note that contempt was narrow. it was for the attorney general's refusal to give us the very document that the ig required in order to do this very comprehensive report, i would say just the opposite that contempt was most appropriate in restaurants that when in fact the very documents we now know and are applauding in this report were the documents denied. >> before you came in -- >> this report seems very thorough. but he said, about 1400 pages? it seems like he has the oig and all of the information. >> we previously noted it is zero at the minimum possible number of asians. >> thank you, mr. chairman.
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>> i thank the gentleman and i guess we are going to agree and continue to disagree on this. i wish you had been here earlier when the ig was explaining that he did meet the documents to god and was happy to have them and felt we should have gotten them, too. >> better late than never. >> jason weinstein should've resigned a year and a half ago. the housecleaning should've happened a year and a half ago if in fact justice was going to have good judgment sooner rather than later. but i respect the gentleman's desire to disagree. now we go to a gentleman with whom i am more likely to agree at the moment, the distinguished gentleman from oklahoma, mr. lankford. >> thank you, mr. chairman. and yes, would've been nice to have the documents when we asked a very long time ago. i think a lot of people have asked the same questions and just wanted some answers. the thank you for your work employment together in a code to her committee continued to work
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to appeal to finish our reports that as well and hopefully have access to those same documents. let's get to the issue of fixing it. when the attorney general is here, he and i had a conversation about how do we resolve this? the issue putting out a statement that gun walking is now prohibited. there are multiple other issues that we start dealing with fixing it. things like the supervision of the process of investigation is very different for the fbi then it is for atf. my basic question is why? why does fbi have one supervising and atf has a different process overseen by the same doj. the scope of the task that you mention in your report with atf if there is irregular functioning criminal function overlap at times and there are obvious issues. and i'm going to either tunica
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comment. the size of the agency and what they're trying to accomplish. as i read through your report, got to page 338 and there was a very interesting comment that basically alluded to the fact that atf of phoenix is over their head. they were trying to take on the massive task in outlets like they were trying to accomplish something big, but they didn't have the right people, were not coordinated this particular group of asians were in way over their head and should not be engaged. again, goes back to the scope of the task. i've got one more issue it to visit, but i want to talk about the issue of regulatory versus criminal responsibility in the task given to atf. you have recommendations based in your investigation? >> we do. i think each of the issues to identify their very important. performs data have been. the department has three -- before a large law-enforcement agencies under it. the fbi, dea, atf and marshal
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service. they should have consistency among their roles and requirements. of course they can have their different missions. that needs to happen. the fact that atf was not brought under the attorney general guidelines for undercover operations, eight years into their tenure in the department i think was significant from our standpoint. and so, we have recommended for the department to go back and review the other component, look at who has the best practices. you have an organization, multiple law-enforcement agencies. there needs to be some effort to look at best practices and figure out who's got them. if it is atf, the other component should use them. if it's the fbi, other component should use those. >> must make the taskbar specific and clear and also have clear parameters of supervision
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as you do. >> there should be rules if one is better than the other. >> this is redundant, that must make it clear. there also seems to be as every three or report report a bunker mentality that as soon as grassley's letter heads, there is a shut down and let's not allow melson to talk right away. let's limit this to work through the process and no one is talking and try to limit it and all that down. when senator grassley's letter mentions gunrunners, we actually know was fast and furious we don't start to get into details. the stunning one was not just the february letter of 2011. it is the may letter and the testimony that it was apparent that they either knew or should have known that what they were writing to congress was not the whole truth.
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it was a limited form of fat command that if you interpret it the right way it might actually stand up but now in retrospect wasn't clear. that is a treatment to congress and to those investigating that we are going to surround ourselves with the wagon and not allow anyone in. as you get that sense at all? >> well, we looked up at may 2nd letter again, we've reached the conclusion that by that point there was enough information that a viewer should have known they couldn't stand by. >> they were not telling us. they were writing it in such a way to make it look like everything went in when they're really something different. >> from our standpoint the letters literally true as the committee itself indicated in the report, but are concerned with knowing the information they knew after four letters between february 4th and may 2nd where the department
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made a sensitive comments. by that point the appropriate response either to stick in any sane no substantive comments will come out or to acknowledge the information already found. >> when senior leadership, they do not inform the attorney general when brian terry is murder there is a federal nexus and the ongoing investigation. again come were surrounded and trying to make sure we close the information on rather than that information get out. seems to be from the very beginning this is a shut down of information. >> there were many points in this case, at all levels, where information flow not only wasn't what it should've been, but in some instances the outline was inaccurate. even when information was flowing. >> i thank the gentleman. let me make sure i ago correctly here. we now go to the jump from pennsylvania, mr. kelly. >> thank you, mr. chairman.
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mr. horowitz can thank you for being here. when attorneys talk to each other make sense to the the people nobrega world can begin to understand what the heck it is were talking about. in my world any answer but a yes is a no. so when it takes a long time to explain companies because you're hitting that a little sensitive. you've done this for a long time. i made only been on for five months. how long does it take to do an investigation? is this one of such a magnitude that we couldn't come to a conclusion? >> i would tell you my understanding is prior investigations at the u.s. attorney investigation is a two year or so investigation by the ig's office had given the volume of documents he had, 100,000 plus documents in the scope we want to undertake, which was to take you through the congressional responses, it took a lot of time to do that. and very importantly for us, this report had to be thorough.
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it had to be fair, had to be accurate and i can tell you from the five months i was there working nonstop on this, it was an extraordinary amount of documents. we wanted to make sure, this is the commitment i made, i wanted this report to lay out all the facts. >> i don't speak for myself, but also the committee that the 18 month we're waiting to find out and been stonewalled time after time after time and requesting information not been able to get it in getting documents delivered to pick up trucks thousands of most pages redacted. this one just doesn't past the smell test. there is something wrong here that we are not getting to. you know, jason weinstein, lanny brewer, other officials at the department do not receive any action. is that a disappointment after looking through which you've looked through after the past five months and building on the months before that? ..
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>> at some point, the buck has to stop somewhere. the attorney general appointed by the united states -- all of these different agencies, when there is a turnover in agencies, there is a turnover of people. if i am taking over a company, i want all of the managers and departments. there is a way we do things differently. the law may not have changed, but maybe the policy and legal about it has changed according to the velocity or method of that administration. i look at this end we have all talked about it. why so long. was so hard to get information that is very basic? again, a simple yes would have been fine. but the dragging out and dragging out, is there any wonder why the american people have lost faith in the way we do
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things now? you look at this and i have to tell you. i watch it and i look at all the things that have happened. no sun or weinstein or whoever -- it's a whistleblower thing. i will probably never do that again. so these people are being thrown under a bus. you have to understand this part of the process. we what we have to do is make sure the people get protected and people at the bottom are very vulnerable. i would really be very lax. i would be very aware to work through this whole thing. i would be disappointed that looked more political. i have that concern precisely, congressman. >> there needs to be an assurance that people who want to come forward come forward and do not feel like they're going to be retaliated against, a demotion, or action taken against them. this is a case of willing people
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to step forward. they needed to get to the bottom of it. after 18 months, things that we could've known way back then, things that have been distorted and manipulated did not need to be done. again, it is an indication that we really mean what we say, and say what we mean, we have to do it and we can't just think that that is the way to placate people. with that, chairman, i think you. >> you have called for in your report the unfeeling apportions of the wiretaps that you use -- i would also like to ask about the letters and exchanges, it
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concludes that wiretap affidavits describes specific incidences that would suggest the prosecutor who is focused was focused on the question of investigating tactics the atf would have been recognizing that there was an intense not to interject weapons from straw buyers, and once in which -- ones in which straw buyers knew about. i would ask you to speak about items that are under seal if possible, in hopes that you would unseal portions that maybe all so recovered by those letters. >> i have been given the letters and i will take a look. >> i thank the gentleman. would that from a legal to the ever patient person who represents my alma mater. i may have recognized you last
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in the order but certainly not least. >> i think the chairman. also, i represent a district in the great state of michigan which is a proud state of a fever and son. a home grown son, age and brian terry. we take that as important. also, i appreciate very much mr. horwitz, your work, extensive work. valuable work. representative langford touched on the grassley letter. >> i do, congressman. we asked for everything we thought was responsive and we ultimately got everything we asked for.
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>> do you believe everything that was necessary the received? >> everything as noted in the report, we asked for some personal e-mails, given the fact that we went in personal e-mail accounts. >> well, i would reiterate what we were asking here in this committee as well for the same type of document so we could've done this review. it would have ultimately brought about instantiating a report of what you were able to bring. as i understand it, you personally reviewed the "fast and furious" wiretap applications that is correct. >> former atf director director says that after he read the wiretaps, he was sick to his stomach. did you have a similar reaction? >> i came to the conclusion that there were more than enough red flags to question the tactics used in the case.
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the reports that high-level officials were responsible for authorizing high-level wiretap applications that are sufficient to enable those meeting the statutory criteria, as of page 431. has the agency decided it will implemented? >> they have indicated as a response to our request, they are supportive. we will now follow up to 90 days. >> you know whether the assistant attorney general lanny brewer this recommendation?
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>> i don't know personally. it is on the department's decision as a whole. >> do agree with this? >> that is my understanding, yes. >> i appreciate that. we will wait to see. thank you for your response. >> are you going to yield to mr. dowdy? >> yes, i was going to do that. >> i am not really smart, but i'm smart enough to let the chairman know if he had a question. i just wanted to make sure i did not get it yielded back. the gentleman is recognized. >> mr. inspector general, i hate to inject facts as predicates for questions that members ask, but the record will reflect, i know that you already know that the attorney general was never held in contempt of congress because of the actions were fastened. great he was held in contempt of congress because he failed to turn in documents, documents which he turned over to you,
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documents, some of which he is now beginning to turn over to us. i hate to make the record clear, but he was never held in contempt of congress because he sanctioned the mocking. he was held in contempt of congress because he thwarted our attempts to find out what you found out. secondly, you said that they wrote a letter that was reviewed by dozens of people, including people at the department of justice. do you know whether lanny brewer read the letter before it was distributed to senator grassley? >> utility did not recall reviewing it and we found nothing and e-mails indicating that he had actually reviewed it were made a comment about the content of the letter. >> did he give you any indication as to why he would she would forward a draft of
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that to his personal, private e-mail account? >> you twice have used the word recall. that is not the same as saying that i did not read it. that is thing that i did not recall reading it. there is a difference, is there not? >> again, i am concerned as to what letter you would forward a personal e-mail account if you are not an archivist, you are not teaching grammar to the person writing or drafting the letter. what other explanation is there before you, other than to read it? that would assume the reason to do that.
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>> my time is up, but i feel that my time and i think the gentleman from michigan for his time. >> mr. horwitz, just to make the record clear, you said that he didn't comment, but isn't the response, good job, isn't that a comment -- where did that come during or after the letter went out? >> the comments you are referring to came, i believe, on february 2, while the letter was still in draft form. i think from our standpoint, it did not indicate an understanding of the context, and if we did not use the precise words in the report that we should have, you know, i understand that.
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do you accept that you are able to respond and able to do as mr. trey gowdy said, forwarded to your personal e-mail, allow wants to go by, is a situation where i know it is a lie, but i didn't read it -- would you accept that as a prosecutor and let the jury decide? >> well, i think you doing this review, our standard was -- [talking over each other] >> you did reach a conclusion that he was in one group that was at least somewhat derelict in a letter going out that he received and forwarded and
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commented on and says he doesn't remember reading and in fact was for 10 months was over the front page of his papers as we insisted that we have been lied to that there was comarketing and our whistleblowers were telling the truth. they were being retaliated against by the attorney general's representatives. >> what we have found to mr. brewer is regardless of whether he read the letter or not, given what he knew about wide receiver, his responsibilities should have been to come forward and explain what happened. the people who were drafting the letter told us that it would have made a difference. that is what troubled us. >> thank you. at this time, i ask unanimous consent that the e-mail of 2011, house oversight and government reform, doj, 00422, a be placed in the record. these items concerning and regarding atf gunrunner are
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between dennis burke and the number of people, including lanny brewer. also, the doj and house oversight and reform, 04009, dated 2011. in which lanny brewer placed into his personal e-mail the address being redacted for forward, revised grassley letter, grassley atf documents. in which there are a number of comments we alluded to. >> without objection, so ordered. with that, we recognize the gentle lady from florida, ms. adams we met thank you, mr. chairman. i want to think you for letting me join the committee.
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mr. horwitz, i have sat here. as you know, come from a law-enforcement background and i sit here and i listen and i am very concerned that we had an operation that appeared to have no true oversight from anyone at an upper level. when an exit strategy is requested in march of 2010, and nothing happens, i have a few questions as to what happened to this agency? >> i think i need to go back to maybe even before. because as i've worked with this agency, years ago, in law enforcement, they had these oversight protections. you could not get a wiretap without going and getting someone from above review it and approve it and have it taken to a judge to be signed. you recall that? >> there was an evolving
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practice as you indicated, and the atf, that removed that requirement. >> that would be nice to know as to when they decided to remove those practices. because apparently, those supervisors that should've been reviewing it did not review it or claim to have not reviewed it, and therefore, we have a loss of life of one of our own border patrol agents and many weapons across the border in people being harmed everyday. i, too, wanted to ask you, i was reading on page 265, a statement about mr. hoover. he said he told us that he did not recall the briefing on march 5, or on march 11, although his outlook calendar indicates that he was invited to the meetings and as mentioned earlier, other witnesses placed them at both of those briefings. people cannot recall. people could not recall as an attorney from someone who is
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prosecuting cases, when someone tells you they cannot recall, what is your question is an attorney? >> well, it depends on the context. that is the context -- >> right, when you have outlook and by 10 other people were calling you there, it probably means you were there. >> in the case of mr. brewer, when he had the e-mail that was forwarded to a private account and he sends back, good job, as an attorney, set aside. if this indicates that you were investigating as an attorney and prosecuting, what was your impression be? >> do you believe you would have sent it? did you read a? >> the only thing that caused me hesitation there is that when you go to the e-mail string, you do have mr. weinstein when he sends the draft at the bottom of that string. mr. brewer is not one of the people to whom he sends. there can be a tendency at times, i'm not filling a judgment in this case -- that there can be a tendency at times
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when someone sends you an e-mail for reporting on your good work, to say back, good job or something like that. one of the things i wanted to be careful of in this case is to make sure that everything was well founded, and argued that we had something to support it. >> i appreciate that. your friendship with mr. brewer would not impact your decision making on this? >> it had zero impact, had built to take this office and do this job. as i committed before the senate judiciary committee, the only thing that was going to make my decision was the fax from the lot, period. >> i appreciate the fact that you're asking for personal e-mails. i know that my colleagues would
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like to ask another question. if i make him ideal the rest rest of my time to mr. trey gowdy. >> i think the gentle lady from florida. mr. horwitz, i want to ask you this. i only have about 30 seconds. the quickest one that i have, is your investigation is ongoing? >> there are pieces of this investigation that are ongoing as we have reflected in the report. the type of management style you have it reflects the kind of information that is brought to you. did you remain in turn make a culture in which information like this would make its way of
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managing? >> one of the things i hope to do is to make sure that there is an understanding and appreciation and a willingness for people to come forward -- >> one of the areas of particular interest, he received 100,000 documents, we received about 7000 red one that appeared in a report discussed e-mails between jason weinstein, head of the office of operations and william mcmahon. who has been unavailable to us. in may of 2000 the department
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never failed him over. you think we department is -- and might i know that they claim that they withheld documents before february 4, would this be unprecedented to send over in your opinion? >> well, let me just say that they were clearly, to us, highly relevant. i think we don't know the back-and-forth that occurred where the decision-making. so i don't think that i am in a position to answer precisely that question without understanding. >> this document was relevant and important. >> february 4, is that correct? >> that is correct. when he said that he made
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unprecedented levels of documents available to ask him if he was thorough, and complete, and came to congress many times, before february 4 -- then he omitted something that was clearly relevant and important to the investigation? >> i think, these documents to us, were highly relevant and important to us, which is why we spend so much time discussing them. >> as a former prosecutor, if you deliver a subpoena and somebody doesn't mention the document, and doesn't turn it over, but yet they assert that they fully comply with the subpoena, isn't that a violation of the law is simply not turn something over that you know that you have? remark well, without understanding all of the facts -- >> i'm just talking about the hypothetical as a prosecutor. as a prosecutor, you serve a subpoena.
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>> i think you will find that we are taking this racist content seriously and some of the documents will be coming in the near future. >> i'm going to take your advice that some folks don't link the constant allegations that "operation wide receiver" and "fast and furious" are two peas in a pod. i would ask question that my concern. you discovered extensively the number of people, including people at justice at the highest levels, were aware of operation
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wide receiver. we knew it had been shut down, we had u.s. attorney records. and yet, they allow the "fast and furious", whether through omission or omission come to do the same and more? >> there was no action, parent. they did not take steps to stop it. there are people that on both sides of the border. aren't you concerned that these are the elements that take for our government and congress has appropriated dollars to be paid out in damages, whether to hundreds of people dead in mexico, or at least one u.s. border patrol agent in the u.s.
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one that exposes the federal government to huge potential damages? >> i am sure that is the case. so many people understood and knew what happened in "operation wide receiver" took no action, and so many people knew about it as the investigation was going on. after the agents came forward, just as it was going on, no one seemed to take action. when he brewer took a look in my eyes and said there was nothing wrong with "fast and furious."
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but you indicated that the atf agents had bungled the operation? >> i am not exactly sure, but i'm happy to go back into that information for the record. >> his ability to continue doing his job is that he believed after february 4, he believed that after brian terry was dead, i can't understand how he couldn't believe it and still had his job. >> thank you very much, mr. chairman. mr. horwitz, i have a kernel of concern myself. do you get concerned about the effectiveness of efficiency? i started my discussion off by
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thanking you and your staff, all you have done. the question is, where does this leave? all those hours, all of that effort, my mother, a former sharecropper used to teach us, she taught second grade education. the motion, emotion, commotion -- their moments in life, where things come together. it presents a moment, which is pregnant with the possibility of change. sometimes things get worse. this is one of those moments.
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with all of this to light, we have a great picture. you all have painted the picture quite accurately for us. i don't think anybody likes the picture that we see. knowing eric holder the way i know him, i don't think he writes this picture. so for all of us, you know, reform is so very, very important. and in that light,, because i want to be effective in this. i don't want to leave you looking back at my tenure in congress and say that i was involved in one of those moments where we did nothing. and it just gets worse. we are living in times where
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it's easier to get a gun than a cigarette. where we did nothing. the doj policy ensures that the mistakes made in "operation wide receiver" and "operation fast and furious" never happen again. while new permanent leadership within the atf is an important step to ensuring accountability. i think that that record has also implemented several policy changes that the atf has approved,'s case supervision and communication between agents and atf management. in november of 2011, the memo, clarifying atf's policy regarding firearms transfers, reinforcing the importance of direct agents to take all reasonable steps to prevent firearms and criminal misuse. your memo describes explicitly stating that, if law enforcement officials had any knowledge that guns are about to cross the
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border, they must take immediate action to prevent that from occurring, even if it means jeopardizing an investigation. we think of this guide is? what additional guidance would be helpful? >> i could not agree with you more to effect change in light of these. no one listen to what we say and recommend, which is why our recommendations are bigger than this case. creating a regular, interagency law enforcement coordination effort. as you see here, there was a
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failure to coordinate among agencies, a variety of things happen, and i am guessing, from what i understand, we will see when the report comes out from dhs, you will see more of that from the ice -- i.c.e. standpoint. >> i want to thank you all for your efforts. i can assure you that all of us up here want to make sure that your efforts have not been in vain. and i am hoping, just how much jurisdiction you have with regards to the recommendations actually happened. i know that we have some pressure points appear. but how about you? you talk about things that you have to follow up on. how do you see that playing out? >> what we do and as we have outlined here is we have asked the department and the attorney general to report back to us
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within 90 days on the status of the effort in with a timeline for implementing. because, as we all know, if there is not a timeline in place, our goal is to follow-up, make sure things happen, because as an ig, our strength is in a report like this and following up on it. and if recommendations are not followed to go and report back, whether it is to congress or the attorney general or others, that they followed us. >> i hope that both sides will agree to bring back the appropriate parties. maybe in four months, we can actually have that accountability that we are talking about, so we can have that effectiveness and efficiency. >> thank you, i agree with the gentleman. i would hope that mr. horwitz would keep his calendar open in mid- to late january.
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all members have seven days to answer written statements and extraneous matter into the record. >> without objection, so ordered. mr. trey gowdy, you get the last word. >> thank you, mr. chairman. do you know when the mexican government was informed about "fast and furious"? or if they had been briefed on a? >> because i can imagine it would impact the relationship i don't know when they were debris. i do not know the extent which they were debris to about it. there were some indications in their e-mails that we saw about the possibility of alerting -- but i don't know if. >> there has been some discussion about changes, mr. cummings was extremely
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elegant about the desire not to see this moment pass. i also don't want to see this moment used for purposes that are conflicted. >> did you ever prosecute 924 -- 924-c cases. each general case is a consecutive five years. depending on the nature of the weapon, it could be up to 20 years. and the third offense would be like. i went to law school, i'm not good at math, but five years times 1000 weapons just strikes me that unless your name is methuselah, that's going to be a really long sentence. >> i would also be curious, and i i'm ask you something to look into whether or not the usa's after for upper departures.
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the remedy is not always -- i want to say this, because i want to conclude on a more more harmonious know. your job is to identify facts and you do draw some conclusions and almost all of your conclusions, i agree with. i am not suggesting that we disagree on this. i have a little bit different analysis, with respect to the criminal division chief. whether he wants to stay "operation wide receiver" or "fast and furious" is well irrelevant to me. i appreciate the fact that there could be explanations other than reading a letter, that he would forward a letter to your private, personal e-mail account, and i appreciate the
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fact time to time come we don't read e-mails in full, we just take the jobs were thanks for sending it. i just have a higher expectation for that department. and for the criminal cheap. >> i think it's wonderful that we have someone of your independence. you have been exceedingly polite and professional in your testimony. i wish you all the best for the department of justice is not just another political entity. and when we lose confidence in that woman holding a set of scales and a sword, we are finished. it's not about politics, and never was, i appreciate the fact that mr. cummings would complement mr. isaac. this is a very politically charged environment that we work
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in and that you work in. in fact year your work and shop bipartisan support is a testament to you and your staff. with that, neil back. >> with the gentleman yield for just a moment? >> yes, sir. >> i never thought we would actually get to your questions. i want to summarize a couple of things. obstructing congress is a crime. i will make the statement, you do not have to evaluate that one. clearly, justice during this time obstructed congress. they made an untruthful statement. on february 4, the double down by having at a minimum, an extremely deceiving statement as i have often said. the only way it is truthful is that they don't like guns walk -- is that the guns did not have legs and feet and shoes. in multiple areas, they did not respond honestly and shoot
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legally to a subpoena, leaving information out. information to be made available to you. and, the separate content question of refusing afterwards. but in that case, i will accept that they were going to argue the question of presidential executive privilege. what do you think we should do, and what can you do when agencies outright refuse to provide information pursuant to an investigation of a crime? >> what i did when i walked into this job and was committed to doing, was pressing forward and writing a report that covered everything. and putting it forward and if folks thought there was material to reject them about was their responsibility. my job was to get the facts and put it out there so that the american public see what we saw, here the facts that we found. and the conclusions that we
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reached. that is my job as inspector general, i wanted that out there, and i'm glad it's out there. as to what occurred and what did not occur, as to reductions in other instances, the others unction evidence is there is and what we found. >> any potential criminal referrals? >> related to the february 4 letter those who either lied or became aware, particularly that an untruthful statement had been made. >> okay, so much of that is driven by content. the difficulty with that letter, as we outlined in the report is that it was such a disorganized and problematic process that you
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had people who didn't know information making substantive edits to a letter. along with people who did know information providing inaccurate information. and how that letter ended up the way it did in blaming one person or two people for the particular information, it was the difficulty of it was such a problematic process as we tried them laid out. you could not disentangle, from our standpoint, all the different pieces who offered what and how. do you have any closing remarks? >> as i was just listening to the question, the chairman -- on page 395 of the report, the inspector general, the senior justice department officials
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attempted to mislead congress come instead from the inspector general found information provided by senior component officials that was not accurate. >> dissector with what you're saying? >> yes, the problem was they were getting information that was inaccurate. and the people finally realize that they were making changes that were sensitive to the letter. >> thank you. in closing, this is inclusive and chimp including a major chapter in "fast and furious" and the false statements made to commerce and senator grassley. as we turn the page, it is the committee's hope, that we will
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in the coming days, see the level of cooperation we have that we have not seen before. i was encouraged that the 300 or so pages -- notwithstanding that hope in the days to come, most of those 100,000 pages that were made available to you, mr. horwitz, would be made available to the committee or, in the alternative and perhaps better, and ability and willingness by the attorney general to allow a side-by-side evaluation by our committee so that we could save the redundant time. but you and your staff have used a great deal of. in cleaning the facts and figures of these documents that we haven't seen. it would be hopeful that that kind of willingness to have our investigative approach see what you see, would, in fact, allow us to come to a quicker close and perhaps eliminate the need for protracted fights in the
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court. lastly, i look forward to the american people having an opportunity to read as much of the material as can be made unsealed as possible. i believe the american people and the brian terry family have the right to have as much transparency as possible. i think particularly when we look at the failures and safeguards of the fourth amendment rights, as you so aptly said, that, in fact, all groups, groups who have nothing to do with "fast and furious", but have everything to do with civil liberties, are going to want to know how these failures occurred in detail and, like the ranking member said, in a nonpartisan way, we are going to want to make sure there is change so that this does not happen again. i might note that atf is not the only law enforcement agency that requests for wiretaps. wiretaps are requested on a daily basis from many
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organizations. through this investigation, i have, as a non-lawyer, gleaned a better understanding that wiretaps are presented to judges normally. judges relied on the honesty and integrity of the process that the justice department in order to authorize this. it does not mean that they have the right to question or reject, but for the most part, quickly dispensed with a trust where the documents are complete. often, judges have told me that, in fact, clerks looked through a number of this and they rely on the completeness of that. to me, that says that the american people's constitutional protections or, perhaps, delegated to individuals who ultimately did not exist in the statute as the responsible parties. mr. gorman
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mr. gorman mr. horwitz tells us that this has not always been, even those statute acquires the standard. for that reason, judiciary and oversight to my push work with both committees to help the statute in the future. we do that because the american people have a right to expect that government respects greatly the limited and necessary invasion into people's privacy and that it must be both necessary and limited. in the case of "fast and furious", it was not necessary. nothing else has been told. the understanding that these operations continue long after the wiretap was not the source of additional information.
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i think for the brian terry family, who is trying to deal with this death of their son and brother and cousin come at the tender age of 40, those over here, in a way that he shouldn't have been, this will bring partial closure. for that, i would like to thank you, and i know the brian terry family would like to thank you. with that, i think mr. cummings for his efforts today. i think all of the members from participating and who participated -- for mr. horwitz, the many who have worked so long, please express our thanks for your thorough and complete work. with that, we stand adjourned on this, and we will immediately reconvene after you lemediately reconvene after you leave before a quick markup.
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[inaudible conversations] >> we are trying to encourage developers to think about what information they truly need to make the application functional. if you are playing a game, do they really need to collect geolocation information, precise geolocation information that will track the consumer that is aggregated and collected, as she passes student rules come at the time of day and so, this information -- what information is needed to make the application functional, who should see it, in other words, should access the limited? how long do you need to obtain a? and when you are done with it, i
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think that is the biggest problem and the fears that people have. that we will in washington, decide how we will try to do this business is or not do this business and hurt a growing business. the only real fear was workforce issues for the rest of it is nothing but optimism. >> smart phone applications and the u.s. economy and privacy tonight at 8:00 p.m. on c-span2. the first debate between mitt romney and president barack obama is next wednesday, october 3. jim lehrer moderates from the university of denver. watch and engage with c-span, including a live debate preview, starting at 7:00 p.m. eastern, followed by the domestic policy debate and the postdebate for your reactions and comments. calls, e-mails and tweets. follow us on c-span, c-span radio and at
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the cato institute held a criminal law hearing. including the sec, and arizona's immigration law case, all agree that criminal law is changing with justices having to deal with increasing new uses for technology for the supreme court begins its new terms and just a few days, monday, october 1. this is just over one hour. >> because of the severe storm warnings we have been receiving, is expected to hit the capital city a little bit later today. in a flash flood warning -- the ones we have been hearing on the radio, i want to remind you that your seat cushions -- [laughter] -- can also be used as flotation devices. please note the exits. [laughter] keeping in mind that the closest
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exit might be behind you. [laughter] most important from the perspective of our panelists, please make sure that all of your electronic devices have been turned off and are stowed underneath the seat in front of you. we know that you can visit other think tanks, so we appreciate your attendance today. we hope this day is a safe and enjoyable one. >> thank you. >> [inaudible question] [applause] >> i have no idea. >> on to the business at hand, there are many interesting cases that came before the supreme court last term. unfortunately, we only have time this afternoon to cover three of them. for this panel, my plan is to introduce each speaker in turn. first up is my cato colleague jim harper. jim is director of information
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policy studies here. his research delves into areas such as privacy, telecommunications, intellectual property and security. he is the author of identity crisis, how identification is overused and misunderstood. and he recently coedited the book for cato called terrorizing ourselves, how u.s. counterterrorism policy is failing and how to fix it. it is on the jones case on the constitutionality of using gps for vehicles and cars. please welcome jim harper. [applause] >> between tim and myself, i thought i was the funny one. but obviously that is not going to be the case. all the sense with the obligatory opening joke. the jones case and i think the most important thing to understand is that the jones
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case was not a severe just a good case because it was a unanimous privacy when, but really because it sets the stage for reform for the fourth amendment document that came after c.a.t.s. i am sure that you are visitors with us on this topic. you're probably familiar with the case because most of you probably used to go to the nightclub up on montana avenue northeast. i go into this practice briefly. it was a nightclub. i never went there myself up or close down some years ago. the owner of a nightclub, named antoine jones, came under suspicious of narcotic trafficking in sales. law enforcement got a warrant to put a gps device on his vehicle. the warrant allowing him to place the gps device within 10
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days of the district of columbia. as to set up gps device on the 11th day in maryland. outside of this district where he was allowed to be attached and outside of the time. map of the warrant. the government argued not that it was a technical deviation, but it was not required to place a gps device on the car and collect pages of information about the whereabouts of the car and johnson suffered to conduct further investigation and require warrants, to charge and convict jones of the conspiracy charges and the underlying drug charges. he challenged the gps evidence. the result of that challenge in the district courts and in the
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court of appeals rather than superior court or a nice illustration of, as far as i'm concerned. the trial court found that jones did not have a reason expectation, therefore it was not attached to the gps device of the vehicle. the dc circuit found that he did have the totality of his movements are not. matter of time, something the supreme court emphasized, 2000 pages of material about his whereabouts. this is the mosaic theory were enough data points collected public data points -- they draw a clear enough picture of a person's life, but across as a fourth one. the governor appealed the ruling to the supreme court, and the supreme court -- they asked specifically about whether the attachment of the device to a
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vehicle violated the fourth amendment rights of jones. the holding was unanimous for jones. which is really nice, but almost perfectly split as to rational. justice scalia wrote the majority opinion, with five votes behind him, essentially, using a property-based argument. he said that government installation of a device and use of a device to monitor movements constitutes a search. justice alito wrote a concurring opinion, differing strongly with justice scalia, he divided that there was an 18th century tort law approach to the amendment, just a sotomayor said that both
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sides are essentially right. she adopted a property-based argument made clear that it could not deny the existence of the reasonable expectation test in cases where property arguments were not available. the greens became as that privacy should be maintained according to the fourth amendment. a miniaturized constable with a lot of writing materials. i had a pretty good idea of what i think it is.
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coincidentally, 1967, a book written call privacy and freedom. that was the idea that privacy is controlled information about oneself. i have written at length about the control dimension of privacy, if you will. people use it to describe different things. but the control to mention is that someone has dashed someone enjoys privacy when i have the power to control information about themselves and when they have exercised that power consistent with their interests and values. it is hard to do, particularly hard to do in the online world. i will talk about the off-line world to illustrate what i mean. control of information literally means blocking the sound waves particulates, surfaces that reveal information to other people. other people's eyeballs, ears, nostrils and tongues, etc.
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we put him close3 nostrils and tongues, etc. we put him close to block from other people the appearance of our bodies. we go into houses to go walk what we do inside there. when we put on clothes, not only do we visit a temple and physical protection provided by clothes, but the law backs that up. no one else can come in your home and has discovered what has gone on within. but for having violated your property rights. in my arights. in my argument for what the court to do after the jones case, i do not essentially argued for seeking privacy protection, but rather look for searches and seizures in light of and by what privacy is. maybe as a sort of lawyer, i went to the blacks law dictionary definition of search. which is to seek out that which
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is otherwise concealed from view. understanding what concealment is and how it works, you can understand what it is to look for things that are otherwise concealed from view. and the courts have done this quite ably and low context. 1968, just a year after this, giving up all of this legal expectation nonsense. we have the case of terry versus ohio. where officer mcfadden had guys who look like they were acting assertively, soon thereafter, two blocks away, he grabbed teri, terry, he turned him, he patted him down and found the gun that he suspected. the teary court ruled very clearly and plainly about the seizure of brian terry. and the search that occurred when officer mcfadden uses figures to discover the gun. quite different in feel from the body and papers underneath the clothes. the courts challenge to understand privacy, privacy protection and search.
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.. to collect a signal from a phone conversation on replication using that wire. but in that case he said there was no search. it was the use of the sense of
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hearing allowed. justice butler, very interestingly as scared by justice brandeis' flourishes set in his defense of that case that the communication belonged to the parties for whom they pass through the earliest i've found can earliest iteration of digital facts, something i think about quite commonly nowadays. the cast decision, which we're familiar with are the expectation of privacy test didn't turn on justice heartlands articulation. having secreted himself in a phone booth, walls of glass that prevented families are beyond it sad privacy for himself, privacy that government officials could not overcome using secreted phone booth beard well, hans concurrency tagamet original expectations of privacy with attractive language and some lawyers can't seem to say the word privacy without the expectation in front of it
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anymore. i donated cited the reasonable expectation is not helpful to the minimum protection and not intellectually sound. we rarely if ever applied faithfully and unobjectionable a reasonable privacy. gemma requires courts to gasp at values, something poorly equipped to do. once the chorus havoc and societal values, that is how your expectations have to be fat, but what the court said. if there's a new idea have to offer about privacy task on his comparison comparison of regional expert haitians. they go simple and straightforward idea that one person i perceive something grandstanding and a given place, they are not to take cognizance of it to render their judgments about what may be going on. that is the plain view, and
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straightforward. painters hill madcap equal opposite goes to this wonderful exploration of whether it's reasonable to expect something is concealed. to simplify the law and balance the law back towards the privacy protection we expect from the fourth amendment, plainview in plain concealment should be equal opposite, not getting reasonable expectation of privacy law. my prescription for the quarter, which i'm sure will be at that did in the next days is that the cats taz should be dispensed. it is not useful in protecting privacy. it's not useful for one person at the event that they are for chorus to administer. if the administrative problem of unwanted doctrine that is the heartland concurrence. rather, i argued the court should look for searches come a search is a sad seeking out what is at the risk of field from you.
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i'm not literally, factually. was the thing available to be seen given the physics that play and a loss on the books around that theme. the strong craze in that area is key though. i like to call it the good kilo, not the property rights case, but the one where an infrared camera was used to examine the goings-on inside of the home and over again 2001 if i recall correctly. another case written by justice scalia, he argued not a general public use to examine the detail of the home, that is a search. and information technology, an infrared camera takes emanation that is radiation for whatever is examined and takes it from the invisible speck term, things we cannot see from afar and is radiation to the visible spectrum. if anything is a search, looking for something other is not perceivable, that is a search on memory technical definition than
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the one scalia offered. secondly, look for seizures. with ac share, the language in most cases unfortunately fears stored calling feature a deprivation of sensory interest, not to care where the cases that preceded jones and i talked persistently about the possessory interest. that is an area where information technology will change the records think about property. you can do a lot of things that technology, not having to deprive someone of a possessory interest in acting affairs. take for a typical cell phone left on a high table, let's say a nightclub on montana avenue northeast. bond for snape picked up a farmer for a moment on this table, downloaded parental control application and replace the found come instructing the control application to communicate regularly with an ip
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address controlled by law enforcement comment where it is, what is the good on the phone, all the applications used on the phone, et cetera, et cetera appeared under the sun returns and it's imperceptibly different than when they listed on the the table. yet no possessory interest has been deprived arguably. the phone is now an interest of law enforcement to use in surveillance justice joseph connor was an instrument to be used by law enforcement in violation of his property rights. so back to your law is more philosophically sound committee will comment in the possessory interest. courts talk about the right to exclude as an important element of property. tony honoré, the political philosopher who has articulated the idea of property as a bundle of six points that possession is only one of the stakes. the right to use, process, et cetera, et cetera for other
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parts of the property. the court should recognize that in the future seizure case, for information technology is used to invade a person's privacy. i made these arguments in their more recent case, florida versus guardians, the drug sniffing case where they brought this action a home in the question is whether bringing a drug sniffing dog to the front of a home as a search. that is been argued next month in the supreme court and i hope i can be back with you next year to share the good results to that case things turn amicus brief filed or the cato institute. thank you very much for sharing me on this. [applause] >> thank you, jim. our second expert speaker this afternoon is john elwood. john specialties appellate
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litigation review of the administrative action. after graduating from the yale law school you several judicial clerkships including mouth justice anthony kennedy. after his clerkship scummy move to the justice department's criminal division, where he tried cases in the district court and argued in the courts appeal. from 2,222,000 that he served in the solicitor general's office over 2005 to 2000 served in the office of legal counsel at the justice department. his article is about the case fcc the fox television case. so please welcome john elwood. [applause] 's >> fcc v. fox television is important for three reasons. first i think it is important in its own right in that it wound up having orders against various broadcasters vacated although that is the least important part because it is a pretty narrow
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decision. it is important because of the non-blood of the narrowness of the decisions of the roberts court are these emblematic of the decisions are very narrow. it is important because of the tvs and provides for the future of the first amendment and the regulation of indecency. if it turns out i am right in my predictions i will give you later, please remember me, otherwise this never happened. so if you are wondering, what is this about criminal cases here? there's actually kind of a fig leaf for why this can be considered a criminal case, even though it was sent. that is there is a lot in the book, 1464 prohibits any obscene or profane language by means of radio communication. i am not aware of a lot of prosecutions. the lesson i know i've come a nice brandy flask in the most recent as 1972.
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but there's not a thought in any event. but the way that is enforced is enforced by an administrative agency by the fcc. on the communications act of 1937 is a system of limited term broadcast license is subject to various conditions designed to maintain control of the united states overall the channels of radio transmission, unquote. since 1927 the federal radio commission on federal communications commission has essentially enforced the antiobscenity and anti-indecency restrictions to regulation, through licensing under penalties. now we manage to make it all the way until october 1973 before they had to use the thing about and then pacifica foundation, which on some nonprofit stations broadcast george carlin's seven dirty words monolog, one tuesday in october at 2:00 in the afternoon. if you've ever heard that
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comment never particularly liked it, even when i was young amateur camera, i never really liked it. but it lives up to its billing. any was sanctioned by the fcc in a supreme court upheld a sanction in 1978 in an opinion by justice stevens. one of the many opinions that he probably wished he could go and take back at some later point in time. but he upheld at on a rationale that has come under a lot of fire recently. he said the broadcasters and medium that received the most limited amount of protection of all forms of communication and he noted two reasons for that. first because broadcast was uniquely pervasive in the lives of all americans, an intruder in our homes. you turn it on and suddenly it can be confronted with these things. secondly was uniquely accessible to children, even those too young to read, whereas the dirty
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jacket might not have meant anything to a kindergartner, if you leave on indecent broadcasts coming your children will learn some unwanted vocabulary fairly quickly. and so, was upheld under that uniquely pervasive and uniquely accessible rationale. in the years that followed, there really wasn't a lot of innovation in fcc's regulation of indecent tea. because the carlin monologue was just about repetition of vulgar words, there was a lot of emphasis on repetition and announcements by the fcc between the 70s and the early 2000 so they did emphasize repetition is the fact the fcc would consider determining whether something was indecent. then came a series of events that would launch a thousand passwords appearing in the
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united states report. and it happened and we can blame it all on award shows. now in the past, they were merely, but in the early 2003 became kind of vulgar in addition. there was a barrage, share kicked it off with the ford. nico richie not to be outdone followed up with using that password on trends f word editor great difficulty 9.5. then came n.y.p.d. blue which went a different direction and broadcast seven seconds of women's.ox and n.y.p.d. blue in a fleeting glimpse at the side of her breast. the previous award shows are the billboard awards for 2002 and
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2003 and then followed up in 2003 on the golden globes, where he used to train said 10. the sec revisited its policy and took a different position about repetition. he said the fact specific words or phrases are not sustained a repeated is not band-aid material says otherwise patently offensive to the broadcast is not indecent. and they justify that on the fact that she used to f word and f word is a poker word. the fcc then went back and penalize the other three instances, nicole richie and n.y.p.d. blue on the basis of the golden globes order. it required more heavy lifting in the case of n.y.p.d. blue since that involved nudity, but they basically said based on their prior precedents that they barred preferences and portrayals of excretory organs and said this was close enough.
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the second circuit on appeal reversed it out administrative procedure ground saying that basically they interpreted state farm principle to name that we basically change the meaning of a law to regulation as opposed to just giving it a cause, you have to justify up more. you have to give a better rationale and explain why you're changing. and the supreme court reversed that in 2009 on an opinion by justice scalia. it went back to the second circuit comeau spent struck it down, although it's a pretty broad ruling. they criticized by the sec had been inconsistent in their use of words, which i will repeat. their analysis of make you blush. there's a lot of splitting hairs looks ridiculous when you see it in print. they said there basically was a deterrable standard and under the principle as justice kagan leader quits, it seemed like the only rule of thumb was that
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steven spielberg's work was in indecent, but others work words. so that came up to a later panel actually involved the swearing in the later panel invalidated the n.y.p.d. blue sanctioned on the basis of its prior ruling. so it came out to the court and the court heard argument reversed on june 21st. the ultimate and down day as they had to after that so is that their longtime and i'll talk about that later. they struck down the application. they said that the of the rule to these three rules was applied unconstitutional. and they emphasize the absence, but previously talked a lot about repetition and there was the repetition here plainly. and there was nothing to indicate the kind of nudity
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without issue was going to be big into sanctioned spirit now i think the first thing that is noteworthy about this opinion is the narrowness of the ruling. all sorts of people including the cato institute and a brief that i wrote for them argued that the pacific standard ought to be overruled. it had been overtaken by events of us no longer valid. there were obviously much broader first amendment rulings -- much broader holdings handed down any was vagueness. simple. and instead, it really was a very narrow decisions that broke no new ground. in addition to the first amendment issues, it was even narrow as a vagueness ruling in that it only addressed the first of the really two elements of due process. that is noticed as opposed to clarity. and the fact that they address only notice as opposed to clarity means these three
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orders. the chanel, as a matter of law, the icc standard is still in place now and could apply to any broadcast going forward. i think that the opinion is also noteworthy in how self-consciously narrowly it is written. justice kennedy wrote it in such a way to emphasize that on the fact that this case, there was really a lady down. he wrote the recitation of the fact to really make it seem like this was a very, very narrow holding. it is noteworthy to compare how this opinion from 2009 disguised the procedural history and the evolution of the sec's enforcement policies can dare to have the kennedy opinion data. the kennedy opinion says that it gave no notice to fox or abc and they changed course abruptly. if you look at the scalia
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opinion, he says he was cautious, but gradually expanding approach and they describe the 2004 ruling, the golden globes ruling as just one step further. i think that is itself kind of talent that they traded make it very narrow. if you think about the alternative, they were trying to shut this was an extraordinary event because it limits the fallout from this case. there aren't that many cases where you have such a clear-cut example of the agency changing course in holding people liable for conduct that would not have been covered earlier. if the court had portrayed along the lines of justice scalia 2009 opinion, would've potentially open the landlord and the strait of orders to due process and vagueness challenges. it's kind of interesting the that each of the justices joined the other person's opinion. so if not that they had -- they disagreed with one another's approach. there is really only one on narrow thing i noticed that as
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justice kennedy went out of the way in his opinion to emphasize that really there is nothing about this case for me to turn on the first amendment. you know, this could've been regulation of a garbage can or something and they didn't have any first amendment implications. just because it was such a turnabout in the agency's enforcement policy admitted a problem, not because it had anything to do with the first amendment. now going forward, as they say, basically everything that was undecided before the opinion is more or less more or less still undecided and it remains to be seen how these things will be turning out. as i said earlier, it is significant to me the case is pending so long because essentially this is a unanimous opinion. justice ginsburg concurred only in the decision, but you don't verbally expect it to take from
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january until june to issue an 18 page unanimous opinion. so it seems to me there's a very decent likelihood that this resolution was sent the supreme court's first trial. and you know, you can look at the oral argument transcripts of what was argued in favor of the alternative resolutions were and what might've come of them. now let me see here, one thing that struck me as very significant is even though the government to try to defend pacifica on its own terms, that is this pervasive and accessible rationale that pacifica adopted, the most of the action is elsewhere. and the thing that struck me most when i read the transcript was that solicitor generals who really argued the case for the
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government. the first words out of his mouth had nothing to do with the pacifica rationale and it had nothing to do with an argument of any briefs are filed. the argument made with something that i'm sure came up during the course in the office where from personal experience i can tell you sort of the rationale you a present to the court changes a fair amount course of the moot court spirit and said what he was that these licensees are getting something tremendously valuable. they are getting that on the condition of following the terms of the license. and so they basically agree to it. they agreed to be subject to this indecency regulation. this is something the court explored a little bit during the oral argument. i think the fact they went straight to that is that fact they may not defend the indecency regulation on the pacifica rationale.
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if you take a look at the article which we submitted and is basically an update and expansion of the brief we filed for cato, there's good reasons for that. it's a second circuit noted as justice thomas and justice ginsburg as noted in the separate opinion, it was decided in 1978. because of that, i think there's a very good chance the government will go to some other rationale. i don't know how old that because there's many occasions that put conditions on that. there's unconstitutional conditions cases like the league of women voters, justice alito argued as an assistant general that showed that won't be a really easy argument to win, but it is a possibility. and then you have some of the statements by the justices that suggest they would lead to a different rationale to uphold the indecency regulation in particular statements by justice
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kennedy, who is normally the best thing next to an absolutist , the chief and justice scalia argued what i call sort of the highlander decency rationale. what we really need will preserve the space that we know children can go to and not be confronted with people and swearing celebrities. it will be adjusting to see how this turned out because the fact that the court did go a long one of those rationales, even though it looks like they have some other rationale that they tried at first suggest to me that were not five votes and otherwise looked like they would be messy. it could just be the government to develop these rationales and the argument and decided to wait for when they did. it will be interesting to see how these things pan out looking for work. anyway, tonight very much. [applause] >> thank you, john. a third speaker is professor
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peter spiro was a chair in international at temple university. in addition to international at peter specializes in the constitutional aspects of u.s. foreign relations and immigration law. he is the author of beyond citizenship, american identity after globalization published by oxford university press and has a new book coming out from the new york university press called here and there, dual citizenship in america and the world. i should mention peter suter he was going to be offering thoughts on the arizona immigration case. would you please welcome professor peter spiro. [applause] >> thanks, 10. when tim proposed the order for this sort of grab bag panel, should have remembered it's always hard to follow sex and drugs. but we will try here.
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it is an important case that i'm going to be talking about here come the arizona versus united case, which is really the most important decision from the supreme court on the intersection more than 70 years. i will make three sets of observations. first up to the question of who won and who lost, which is sent and debated a little in the wake of the decision this past summer. secondly, i am going to take a somewhat critical perspective on justice kennedy's majority opinion in the decision. thursday i'm going to look at what i think the impact of the decision was going to be on the ground going forward, on what room is there for immigration, federalism going forward. so first on the question of who
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won and who lost. this is a nominally split decision. i think it is pretty clear that this was a lass for the supporters of arizona. an issue in the case were four provisions of s.b. 1070. there was section three, which made it a crime under state law to fail to carry federal alien legislation document. section 5c would have committed a crime for aliens for unauthorized aliens to seek employment. section six would've given state state law enforcement authorities the power to make plotless arrives and context of immigration violations. section two b. is the so-called papers provision, which requires state law enforcement in the course of law full text, where
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there is reasonable suspicion that an individual is in the united states unlawfully to make a determination of immigration status. so those were the four provisions that were at issue in the case in the supreme court struck down three of them. so just on the numbers to god three out of the four provisions that were found unconstitutional. and it's really more like three and a half out of four that the court had a problem with. so if you are scoring this, i think i would be the score. to the extent that section two b. with a palette, the provision was upheld, justice kennedy did so on a narrow basis and explicitly inviting further challenge on an applied recess. so she made clear that another
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round of litigation gave the greenlight to another round of litigation, which astarte starting and the courts below. and more importantly, also the lion share of media attention because it had this very vocative label, shut the paper's provision is actually at the provision of these for the use of these consequence in terms of its putative impact. so section 2b requires law enforcement to make this immigration status, but that's all. that can make a phone call to authorities, but there's nothing concrete that flows from the
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determination made by state authorities and justice kennedy's opinion was quite clearly sensitive to the possibility that the immigration status determination would result in a prolonged determination -- sorry, prolonged detention. he put down a clear marker that any such prolonged detention under section two 2b shed has scrutiny. so section 2b doesn't actually have that much impact in terms of controlling undocumented immigration on the ground, where a section three would have had a very germanic immigration control possibility. section three, the failure to carry documents. you can see the trouble of media had that. it doesn't make for very snappy
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headlines. but the bottom li of sight of section three would have been to criminalize undocumented status under state law in arizona. undocumented aliens are not eligible for federal alien legislation documents. so by definition, an alien here out of status would have been unable to comply with that provision and as a result widows-based misdemeanor criminal prosecutor under state law. that would have had some teeth on the ground. likewise, section 5c would have made it a crime under state laws for an alien to seek unauthorized employment. obviously a large proportion of undocumented aliens are engaged in unauthorized employment and they would've been subject to criminal prosecution under state
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laws. so those two provisions as they been allowed to go in and of fact would have had a much more significant fight on the ground. but that got lost in the debate and the fact that the papers provision did garner the lion share of the media attention led to this question about what is this a victory for proponents of s.b. 1070? the answer to that is pretty clearly no. if you look for proof, just read justice scalia's dissent in that case, which is quite intense. i am no longer watch or the court, so i don't sit down at the end of the year, but i suspect this may have been the scalia opinion of the year. but well worth reading this, always provocative, justice scalia, i don't know if this is why they known, buddha comes to concurrent he writes from scratch and read as such.
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they don't read blake clerks generated materials and as a result they make for much better reading and his dissent in the s.b. 1070 case, which occurred gave the headline, taking state sovereignty very seriously. so scalia had no problem with the prospect of state immigration policies and consider this inside to be an inherent matter of sovereignty. even cited international law in the course of making this argument come international auto course in each advantage, but international law nonetheless. so i pretty care loss by way of bottom line in this case. i think compounded by the reasoning of justice kennedy's opinion i want to spend a couple minutes on his reasoning.
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kennedy played very heavily on a foreign relations theme in opinion for the court here. that is the immigration as a matter implicating the nations of vacations. students of jurisprudence relating to relations will know that this is an antimatter universe. when it comes to foreign relations to paraphrase the decision in the united states versus belmont, the state of new york does not exist. ordinary presumptions about state power unhistorical monitor has been put on their head said that the states are assumed to have no power. it is an exceptional machine. and can we be very clearly situated immigration and the
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framework reasoning of his opinion. that's very important in terms of how he received his opinion. the court clearly did not see this as part of his federal agenda. so in that way, those interested in advancing the agenda can take some solace here. this is just sort of a parallel world where all bets are off. and so come i can't those interested in advancing federalism agenda shouldn't worry too much about this evidence retrieved from that agenda. in fact, the court decided another case a much narrower statutory preemption in the last term, which also involved in arizona law in which the court upheld an employer sanctions regime under a very ordinary, statutory preemption analysis with the court's finding more room for state law in recent
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decades. but not so with the s.b. 1070 case, which set a very low threshold for preemption, what is called a field preemption base has, basically assumes state law, even where it is consistent with the federal machine will fall in the face of that federal regime. this is another way this has been articulated both here and the formulation macchia says is the need for the nation to speak with one voice in the context of foreign relations. justice kennedy dutifully recited that punch out as part of his opinion in the arizona case. so the best i can say about the opinion, looking with critical -- some critical eyes is that it is conventional. i mean, there is something to work with going back to the late
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19th century in terms of situating federalism -- sorry to situated immigration in a foreign relations contacts. i guess this once again demonstrates that law professors are not the target audience for supreme court decisions. i guess that is something we can be grateful for as a law professor. so count me unpersuaded with this rationale. i'm the one hand, immigration does always inherit -- inherently early to foreign relations because you're talking about noncitizens. you're talking about citizens of other countries. so foreign relations is always in the background in some way, but the kennedy opinion fails to explore the rationale behind the one voice, which is all about externalities of state action. so it makes sense to bar the
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states are met to the days that relate to foreign relations, including immigration if the result is going to be serious consequences for the rest of us. so if arizona takes into action on its own and ends up harming those of us who live in pennsylvania or other state scum and there is a problem with that. and in the foreign relations contacts, that is compounded to the extent that the stakes are often magnified. that is not really the world we live in anymore i think one can make the argument that is not the world we live in anymore. s.b. 1070 caused a problem for mexico since mexico is very agitated mounds of brazenly and many of its nationals in just were compromised by its enactment of arizona. but mexico now understands that when arizona and ask the statues
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such as s.b. 1070, it is arizona that is acting, not the native state. and mexico can calibrate its response appropriately so as not to compromise the interest of those of us who live in states other than arizona. so i think there once was a very strong optional base says for what is calle foreign affairs, which did extend to immigration in early supreme court cases. but i think that rationale has been significantly diluted in the contacts of globalization. so finally on the impact of the case, i think the kennedy decision as a conventional one, but also a consequential one. this is going to have some importance on the ground and in a lot of ways is the worst of both worlds for proponents at the s.b. 1070 case.
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as s.b. 1070 had been struck down the mall for provisions had been struck down, that would have given restrictions of constituencies the rallying call. so i think it would have been powered restrictionist in their efforts to secure tougher federal legislation in the context of immigration. but the fact that the court should uphold the provision, the one had been getting all the attention, the restrictions were basically deprived of that rallying call on first street. at the same time they don't only have much to paddle and other state capitals in the wake of the decision. so those of you who've been following following this set on various crisco bob and michael hofmann, who in a very entrepreneurial way have been going about the state
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legislatures and selling restrictionist immigration legislation in a way that i think deserves some credit for thinking creatively and for getting laws passed in a half-dozen states. and so, some success to their efforts leading up to the supreme court's consideration of s.b. 1070 in the wake of s.b. 1070, these enforcement oriented state laws to look very and attract it to state legislatures that have not acted today. all they give his papers please to be other mechanisms taken off the table. they get the papers please with the promise of future litigation , i've tarnished a brand, of tourism and convention dollars. there are a flood of -- there's a lot of stuff on the negative side of the balance of the same
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time that the supreme court's action here got the package in a significant way. so i think that unilateral initiatives that are enforcement oriented will not be tolerated. i think that's the bottom line at the decision that is the cuban supreme court is giving the lower courts here. i think the supreme court will engage the issue for some time. but states still have an important role when it comes to the regulation of immigration. i think what we are going to see evolving here is a scheme of negotiating balance. there are two contexts of which this is already pointed out. when a something along the lines of the utah compact model. so utah enacted a series of measures which had been enforcement side, but which also put on the table the possibility
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of the state initiated guestworker program. so some balance in the mix in the way that not implausibly could garner federal approval. so the federal approval is now necessary for such initiatives, but i think given the pressure that is coming from below, that that approval is possible. and finally, we are already seeing this play out in the context of the obama administration's executive action and adopting the dream act type version of world discussion. the states have room to act within that action so that, for instance, states can decide whether these -- whether individuals who are eligible for this prosecutorial discretion get drivers licenses, or whether they get in-state tuition. so even in the case of a pretty heavy hand from the supreme court and the arizona decision,
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i think we will still see an important role for states in the conduct. thank you very much. [applause] >> okay, we have time to take your questions. as before, please wait for me to calling you a way for the microphone to arrive so everyone can hear your question. please identify yourself in any affiliation you may have. please keep your questions brief. i do not admit to per questions. yes, sir. >> hide, pat spann just representing myself. mr. harper, you hear talk about the use of drones and uavs and i assume driving around -- i
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hate to use the expression you don't like about expectation of privacy, but it seems like you are driving around the highways, driving around the rose. you can't travail someone without a warrant i would leave. so what did you see as the future of some little aerial bug just following someone around compassing what they do if that is going to be the goal. >> it is almost like you are a planned because that is one of the toughest questions for me to answer. i was censored of a contest of sorts at a recent privacy law scholars conference when i submitted this thesis. it was how do you fix that little drone? i'm not sure how to fix it. i came in last. so, that presents a difficult question because it is open, whether or not under my thinking it would be a surge to have a small device follow someone down
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in public, a tiny drone that can fly one behind a car or a person. first of all, the facts of the information about the person's movements in public are not barred by physics and they are not barred from collection by law. but an important sense of using those two guys to figure out where a person has been 24 hours a day or 16 hours a day for some extended period is use of a technology that is not intended for public use. it's not breaking through bears the physics are allowed, but is breaking through time or economics, which are a little more flexible, permeable barriers and when i talk about protecting privacy. nowhere do i say that judges on how to do judging at some point. also it may make an argument in the case that were going to come up around that factual
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situation. it is a search two years exotic technology in order to learn someone's whereabouts, for example. there are ordinary technologies that people use tissue could say i think would be best to say search technologies. those are spectacles that allow one's eyes to focus properly on something. flashlights come in medium to low powered binoculars. you saw the sentiment as they been fall into the area of search. but when you use come as coolio talked about him that decision about when to use technology not a general public use to observe things not otherwise available to you, i argue it is just not a clear line is one i'm able to job the documentary duet in my discussion. quick question, thank you. >> at afternoon, kathleen at the
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cato institute. i just wanted to follow up on the question me talk about technologies in general use, what are the developments at tech algae in the slowly but surely get into public use. the devices that wants her exotic suddenly become the ordinary. so what do you do when you have the case of infrared technology, which starts to become widely available, which is sort of an intrusion on what you physically are fighting to save? how do you deal when it becomes public use? >> you said suddenly, but i don't think it could become suddenly into public use. there will be times as technology advances. frankly the results, but not the rationale of the decision-maker will be assembling in the future, where everybody's cell phone has an infrared device and it. society will understand that if you want to have skewer the
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hours -- your sauna usage in her home community to put the sauna on the interior, rather than an exterior wall. i don't know whether infrared cameras will come into statues. ordinary people come in when they want to store information. but we've dealt with technologies in the past and the right to privacy, the harvard lab review in 1890 was inspired by the advent of photography spring and into sometime. now we are all well aware what it lacked any public seat i have to tell you this. but we walked on a public street, we are subject to being photographed. it wouldn't be an arguable search, but it wouldn't be a search or some kind of exotic technology to capture the image of somebody on the street. so i think we recognize the distinction between the exotic
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technology, the miniature drone that were talking about as a potential, things like eyeglasses, flashlights, cameras, so one and so forth. they would be a technology, information technology makes its way to produce. there might be arguable calls. the better way of determining whether hiser has not been a surge in for courts to say, the reasonable expectation of privacy under these circumstances and they don't under those. the question posed by my way of them can about it is essentially a factual one. come to a court and say 50% have the same 80% or 10%. so you're making otherwise the argument here is that we all feel. your course on much more solid ground but cannot factual -- factual circumstances and type logical circumstances than trying to judge for the nation with a nations failing to be about privacy.
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>> yes, sir, in the back. >> jamestown, national right to work foundation and complete the out of night element on the subject, so i'll throw something out. professor harper, you appreciate your distinction, but i choose substituting our fill of privacy with how we feel about elegy? i don't see how this principle -- this distinction is anymore principle than the reasonable expect tatian of privacy standard. >> well, tell me what i had for bert is this morning. you literally don't know what. we haven't told anyone about it, they haven't told you. you weren't able to perceive it. it's private information and is a factual information matter you don't have that information. if you're somehow able to
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determine that have brought it into a corner, what judgment would a court make about whether i had a reasonable expectation of privacy in my breakfast, what a feat and neighbor district regularly b.c. courts, especially in drug cases and that's how most get to them, doing essentially backward reasoning. and i'm going to forget the name of the case was accorded up did the base corollary that a person doesn't have reselect tatian of privacy and illegal behavior. so if one person has divided the way of illegal behavior, there is the expectation of privacy and anything goes. so i think you're much better off having cores deal with the factual question of whether the information was available. was it physically perceptible to standing in a particular place
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at a particular time, trying to perceive in another ways this information. was illegal for the government agent to perceive this each and, then to ask what society infamous given factual context of what happens to this information. i certainly appreciate the mesenchymal v. across challenges for courts to face them provided by the visceral expectation privacy costs. >> hi, i work for aes corp. in arlington. i could ask all the questions that i would be so much fun. the mr. elwood, talking about first amendment issues when you talk about censorship of broadcast airwaves come i wonder if you have any thoughts about future cases that might come up in terms of what we've seen recently in this video on
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youtube and the innocence of muslims and whether we need to -- whether there is any move to censoring things like that because you also comment to the home buyer computer or whatever and i have no idea if there's any development in that direction, but at the two your thoughts. >> you know, i don't think that they have a hook. i wonder if they could try to fit that into profane, but i don't know there's a stretch tori haut to get it in under existing law. you know, i think it would probably take some form of action. i know that there has been things that have been discussed on the blogs that i am sometimes a contributor to about various ways to get into it. the one that is probably the most -- that she can get such restrictions into domestic law. and i think probably coming in now come the easiest way for the most likely way is through
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treaties. even not, obviously they're streaky ratifications and things like that. but i don't know of a hook under current law for that to happen, but i think that the lakeview scenario under which such a restriction might be adopted is through treaties. of course there's the two schools of thought about whether or not the treaty power allows the amount of external lawsuit from poland, which i don't see that being in the next couple of years although there've been cases spinning around about that. >> so the category that she try to situate the video by way of advancing the agenda to prohibit it would be hate speech and that's the truth and pretty under the international civil, but of rights of state
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obligation to prohibit hate speech. the united states has exceeded the treaty that we reserve from that article and the key constitutional law case, read versus, which held that bill of rights cannot be compromised to the exercise of the treaty power, although some folks, myself included take some argument that interpretations -- that the interpretation of the first amendment could be adjusted to meet treaty obligations and international norms. the other interesting part of the story is the role of private actors on google in particular. so google is not subject to the first amendment. and if google decides that violates its terms of service, then that is sorted even more effective than having the u.s. regulated. in fact, google did pull the
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video from mideast markets notwithstanding the fact that google itself found the video not to constitute hate speech. >> peter, can i ask you a question of dimension that justice kennedy left the door open for a challenge i think you said there's litigation already underway. can you tell us about the status of that? >> well, the opponents of the law tried to block section 2b from going into effect in the supreme court. judge walton and the district court has now allowed it to go into a fat and the opponents of the law will be looking for early test cases that will play on the fourth amendment or equal protection or due process dimensions. i think one thing is for sure,
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it's going to be very cautious in implementation, given that justice kennedy basically invited the challenge. >> i'm afraid we've run out of time. following this panel immediately we are going to take a 15 minute break. >> we are trying to encourage our developers to think about what information they need to make beyond functional. so if you're playing a game come and do they really need to collect geolocation information that will attract the consumer if it's aggregated and collected, can aggregate the consumer as she passes through the world the entire day and for all days. what information is really needed to make beyond functional? who else should see a? in other words, should access a limited? how long do you need to retain it?
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and when you are done with it, what are you going to do with it? >> one of the biggest problems is the work force. they still look for more and more people to move into this industry to work on creating apps, two law that goes into it. basically that is the biggest problem. i think the fears people have are of course in washington will decide to come in a telephone how to do business or how not to do their business and heard a growing business. but the only real fear is workforce issues. the rest is nothing but optimism. >> i watch c-span every time there's an event going on. that's when i really pay attention just the standard mouse. anytime something is going on, i want to watch c-span because they typically have the most unbiased view of whatever is

U.S. Senate
CSPAN September 24, 2012 5:00pm-8:00pm EDT


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